Drive My Car Rentals Pty Ltd v Gabriel [2021] NSWCA 73

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Drive My Car Rentals Pty Ltd v Gabriel [2021] NSWCA 73 Hearing dates: 23 February 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Before: Macfarlan JA at [1] Meagher JA at [2] Gleeson JA at [3] Decision: 2020/105960 (1) Grant leave to appeal in relation to ground 1 of the draft amended notice of appeal contained in Tab 2 of the combined White Folder. (2) Direct the applicant to file the draft amended notice of appeal within 7 days. (3) Appeal allowed. (4) Set aside: (a) orders 1 and 2 made by Adamson J on 11 March 2020; (b) orders 1 to 5 made by Adamson J on 9 September 2020. (5) In lieu, make the following orders on the appeal from the Local Court to the Supreme Court: (a) grant leave to appeal in relation to ground 2 only of the amended summons filed 3 October 2017; (b) set aside order 4 made by Atkinson LCM in the Local Court on 11 August 2017, and make no order as to costs as between DMC and Joseph Gabriel; (c) order DMC to pay Joseph Gabriel's costs of the following applications in the Supreme Court: (i) DMC's application heard on 20 March 2018 and dismissed on 1 November 2018: Gabriel v Grech [2018] NSWSC 1652; (ii) DMC's application heard on 14 August 2019 and dismissed on 11 September 2019: Gabriel v Grech [2019] NSWSC 1163; and (iii) DMC's application for disqualification of Adamson J dealt with on the papers and dismissed on 11 June 2019: Gabriel v Grech (No 4) [2020] NSWSC 726; (d) otherwise there be no order for costs of the Supreme Court proceedings. (6) Joseph Gabriel to pay DMC's costs of the appeal to this Court up to and including the hearing on 23 February 2021. (7) No order as to the costs in this Court after 23 February 2021. 2020/344453 (8) Summons seeking leave to appeal filed 4 December 2020 dismissed with no order as to costs. Catchwords: CIVIL PROCEDURE – third party proceedings – motor vehicle collision – where plaintiff's son driving vehicle at time of collision – where defendant driving a rental car – where defendant cross-claimed against rental car company seeking indemnity – where admission by defendant on the pleadings that plaintiff owned the vehicle – where third party contested plaintiff's ownership on the cross-claim – whether ownership issue foreclosed by defendant's admission on the pleadings – whether the parties were bound by issue estoppels arising from the judgment in the proceedings – Civil Procedure Act 2005 (NSW), s 22 APPEALS – finding of fact – where Magistrate found that plaintiff's son owned the vehicle – where ownership finding informed by Magistrate's assessment of the credibility and reliability of the plaintiff and his son – whether Magistrate's decision was glaringly improbable or contrary to compelling inferences – where small amount in issue – whether leave to appeal should be granted COSTS – third party proceedings – "pass on" costs orders – where Local Court hearing took 8 days – where third party alleged motor vehicle collision fraudulently staged – where fraud allegation not established – where Magistrate implicitly found 50% of trial related to fraud allegations – where Magistrate ordered plaintiff to pay 50% of third party's costs – whether exercise of costs discretion miscarried – whether leave to appeal should be granted – appropriate costs order in Local Court upon re-exercise of costs discretion COSTS – appeal to Supreme Court from Local Court – where mixed outcome in proceedings – where judge did not decide all grounds of appeal – where Court of Appeal decided remaining grounds of appeal – whether separate costs orders should be made COSTS – appeal to Court of Appeal from Supreme Court – where respondent belatedly conceded error at the hearing – where appellant successful on principal ground of appeal – whether respondent should pay appellant costs of the appeal Legislation Cited: Civil Procedure Act 2005 (NSW), ss 22, 56, 60, 98 District Court Rules 1973 (NSW), Pts 20, 21 Evidence Act 1995 (NSW), s 140(2) Judicature Act 1873 (UK), s 24(3) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 3 Local Court Act 2007 (NSW), ss 39, 40, 41 Supreme Court Act 1970 (NSW), ss 75A, 78, 101(2) Supreme Court Rules 1970 (NSW), r 4 Supreme Court Rules (Qld) Uniform Civil Procedure Rules 2005 (NSW), rr 9.8, 42.1 Cases Cited: Barclays Bank v Tom [1923] 1 KB 221 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Furber v Stacey [2005] NSWCA 242 Gabriel v Grech [2018] NSWSC 1652 Gabriel v Grech [2019] NSWSC 1163 Gabriel v Grech (No 3) [2020] NSWSC 218 Gabriel v Grech (No 4) [2020] NSWSC 726 Gabriel v Grech (No 6) [2020] NSWSC 1220 GEC Marconi Systems Pty Limited v BHP Information Technology Pty Ltd [2003] FCA 688; (2003) 201 ALR 55 Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1; [1974] HCA 32 House v The King (1936) 55 CLR 499; [1936] HCA 40 Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222; [2000] NSWCA 159 James v Surf Road Nominees Pty Limited (No 2) [2005] NSWCA 296 Johnson v Ribbins [1977] 1 WLR 1458 Ken Wolf Real Estate Pty Ltd v O'Halloran [2012] NSWSC 993 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lesley-Swan v Owners SP 32735 [2013] NSWSC 1635 Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448 Morris v Hanley [2001] NSWCA 374 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Parramatta City Council v Sandell [1973] 1 NSWLR 151 Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Rose v Tunstall [2018] NSWCA 241 Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Stewart v Sydney County Council; Government Insurance Office of New South Wales (Third Party) [1973] 1 NSWLR 444 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Category: Principal judgment Parties: Drive My Car Rentals Pty Ltd t/as Thrifty Car Rentals (Applicant) Joseph Gabriel (First respondent) Mark Gabriel (Second respondent) Paul Grech (Third respondent) Representation: Counsel: M Ashhurst SC / P Barham (Applicant) B Walker AO SC / S A Baron Levi (First and second respondents)